Imasa Rolando Hipol v. Torture Claims Appeal Board

HCAL 124/2022

[2022] HKCFI 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 124 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of the Philippines who last arrived in Hong Kong on 7 December 2019 with permission to work as a foreign domestic helper until the expiration of his employment contract or within 14 days of its early termination, but when his last employment was prematurely terminated on 13 February 2021, he did not depart and was arrested by police on 23 May 2021 for possession of dangerous drugs for which he was subsequently convicted and sentenced to prison for 4 months, and after his release from prison and was transferred to the Immigration Department for deportation, he then raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his wife’s family who objected to their marriage for religious reason. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bokod, Benguet, the Philippines as a Catholic. After leaving school he worked as a musician in Manila, and in 1990 he went to Saudi Arabia to work as a domestic helper where he met his wife who was a Muslim also from the Philippines but went to Saudi Arabia to work as a nurse.

3.In 1992 they returned to the Philippines and planned to get married, and despite violent objections from his wife’s family due to their different religions, they went ahead to marry in front of a judge in Batangas in the absence of his wife’s family.

4.After their marriage they made their home in Baguio City, but when they started to receive phone calls from his wife’s brother threatening to kill the Applicant for marrying his wife as a non-Muslim, the Applicant and his wife decided to leave for Saudi Arabia to work there to avoid further threats from her family.

5.In 1993 his wife became pregnant with their child, and so they returned to the Philippines and made their home in Mangaldan, Pangasinan, and where the Applicant worked as a tricycle-driver, but when the threatening calls from his wife’s family resumed, and to avoid their threats, the Applicant and his wife in 1998 left the country again to work in Saudi Arabia.

6.In 2001 they returned to Baguio City, and later the Applicant started to come to Hong Kong to work as a foreign domestic helper, during which he was told by his wife that her family had continued to make threatening phone calls to her, and were also asking for his whereabouts.

7.In 2008 the Applicant returned to Mangaldan in the Philippines to work as a tricycle-driver to support his family, but one day in October 2008 he was approached by an unknown man asking about him and his family, and when he suspected that the man was sent by his wife’s family looking to harm him and his family, he fled and ran back home to tell his wife, whereupon they left Mangaldan for Obulan, and in 2009 they again departed for Saudi Arabia.

8.In 2011 his wife returned to live in Obulan in the Philippines, while the Applicant came to Hong Kong to resume working as a foreign domestic helper, returning to the Philippines only for holidays and only to stay in Manila to avoid being located by his wife’s family, but when his last employment was terminated in February 2021, he did not return to the Philippines as he was told by his wife that her family were still looking for him everywhere, and after he was released from prison for his drug offence and was taken to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 22 November 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his wife’s family upon his return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm him after all these years since his marriage and despite ample opportunities all these years to do so as there was not one single incident that the Applicant had directly been threatened or harmed by any members of his wife’s family or by anyone form the Muslim community, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 109 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for his wife’s family to locate him.

11.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 7 January 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 January 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board accepted the Applicant’s claim of dispute with his wife’s family over their marriage but found no reliable evidence of any real risk of harm from any member of his wife’s family despite their verbal threats had continued for almost 30 years, but that the Applicant had never once been physically harmed by them despite ample opportunities for them to do so that it is not accepted that there would be any real risk of him facing any proscribed harm under any of the applicable grounds from his wife’s family or from any Muslim in his circumstances upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.

13.On 8 February 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1)  that the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim and that it was not fair or reasonable in that it failed to take account that his right to life must be protected from extra-judicial killings that he may face if deported back to his home country;

(2)  that the Board failed to appreciate or give proper weight or importance of the presence of state acquiescence that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to him by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI and failed to take into account of the Applicant’s personal background and experience in the assessment of his claim;

(4)  that the Board failed to consider or give sufficient weight to those listed COI which supported the Applicant’s aversions that the police in his home country would not be able to protect and chose to rule otherwise;

(5)  that the Adjudicator was procedurally improper or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response;

(6)  that the Adjudicator failed to take into account the nexus of political parties and official corruptions which exist in the Applicant’s home country thereby making the persecution that the Applicant faced effectively persecution by the State which was a clear case of unfair attitude shown against the Applicant in itself enough to render the decision void;

(7)  that the Board failed to take account of the fact that corruption and incompetency in the Applicant’s home country is still a very serious problem as stated testament by various human rights organizations in their reports which was a failure of the Board to attain high standard of fairness required by Wednesbury test that the decision should be considered unreasonable in the scope of Public law; and

(8)  that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings that ought to allow the appeal and hence was irrational.

14.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how they would be relevant to his claim based on his own facts, or how exactly did the Board err in its decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary to consider the concept of state acquiescence or any risk of torture that even on the factual basis of his own claim at the highest that he had never been physically harmed by anyone let alone being tortured as asserted in some of his grounds. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the board or in its decision being clearly and properly identified by the Applicant, I do not find any basis for him to challenge the Board’s decision either.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.Furthermore, the fact that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 27^th day of May 2022.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1